Citation Nr: 21028552 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-20 712A DATE: May 11, 2021 REMANDED Entitlement to service connection for lung cancer, to include as due to claimed exposure to radiation, asbestos, and herbicide agents is remanded. Entitlement to service connection for brain cancer, to include as due to claimed exposure to radiation, asbestos, and herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1978 to April 1984. The Veteran died in November 2013. The Appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the Veteran's claims for service connection for lung cancer and brain cancer. Jurisdiction was later transferred to the RO in Philadelphia, Pennsylvania. The Veteran's surviving spouse requested to be a substitute claimant for the claims that remained pending at the time of his death for the purpose of seeing the claims to completion. A May 2014 VA memorandum approved the Appellant as a valid substitute claimant for the Veteran as to the issues of service connection for lung cancer and brain cancer. See U.S.C. § 5121A; 38 C.F.R. § 3.1010. 1. Entitlement to service connection for lung cancer, to include as due to claimed exposure to radiation, asbestos, and herbicide agents is remanded. 2. Entitlement to service connection for brain cancer, to include as due to claimed exposure to radiation, asbestos, and herbicide agents is remanded. These claims were last before the Board in March 2018, at which time they were remanded for additional development. The Board instructed the RO to develop the Veteran's contentions that he was (1) exposed to herbicides, (2) exposed to radiation, and (3) exposed to asbestos. Specifically, as to herbicide exposure, the Board finds that there has not been substantial compliance with the March 2018 remand. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d), are also satisfied. Lung cancer is one of the listed diseases. The Veteran's service personnel records indicate that he had overseas service in Korea from November 1979 to October 1980. Additionally, the Veteran's service treatment records show that he received medical treatment at Camp Page in South Korea. VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H (M21-1), directs that a detailed statement of the Veteran's claimed herbicide exposure be sent to the United States Army and Joint Services Records Research Center (JSRRC) for verification. See VBA Fast Letter 09-20 (May 6, 2009). This includes, if necessary, submitting multiple requests to the JSRRC. Gagne v. McDonald, 27 Vet. App. 397 (2015) (holding that VA had failed in fulfilling its duty to assist when VA did not submit multiple requests to the JSRRC). In a July 2018 correspondence, the National Archives and Record Administration (NARA) indicated that they were unable to locate 1979-1980 records submitted by the 49th Ordinance Company to which the Veteran was assigned. The correspondence went on to indicate that the unit was stationed in Riley, Kansas during that period, and therefore, exposure to herbicides could not be verified. The above finding contradicts the evidence of record, as it is clearly established that the Veteran served in Korea for 11 months between November 1979 to October 1980. Further, while the NARA correspondence is of record, there is no indication that a request has been sent to the JSRRC for verification of the Veteran's claimed herbicide exposure. Accordingly, remand is warranted to undertake such development. Additionally, at the time of a June 2019 VA examination, the examiner indicated that the Veteran's lung cancer had metastasized to his brain. Accordingly, remand of the claim for service connection for brain cancer is necessary pending adjudication of his claim for lung cancer. The matters are REMANDED for the following action: 1. The AOJ must make appropriate requests to the JSRRC for verification of the Veteran's reported herbicide agent exposure in accordance with the M21-1. M21-1, Part IV, Subpart ii, Chapter 1, Section H.7.a. The Veteran's personnel records indicate that he served at Camp Page in South Korea from November 11, 1979, to October 16, 1980. This includes, if necessary, submitting multiple requests to the JSRRC. All documentation sent and received by the agency of original jurisdiction (AOJ) must be associated with the claims file. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.